MS (Pakistan) TD and X (A Child) (Jamaica)  EWCA Civ 1776, a case about the minimum income requirement for sponsoring a family member under the Immigration Rules, shows that sometimes starting over with an immigration application and waiting a little longer for a decision is the right way to go.
The appeals were against decisions of the First-tier Tribunal allowing entry clearance applications under Article 8 of the European Convention on Human Rights. MS, a Pakistani national, had his entry clearance application refused because his partner did not earn the minimum income necessary to sponsor him. His sponsor had only provided four of the required payslips (she had been working for only four months at the date of the application). TD and X, Jamaican nationals, were relying on their sponsor’s income from self-employment. The specified documents were not provided and therefore the application inevitably refused.
In both cases, different judges of the First-tier Tribunal allowed the appeal analysing all the circumstances using the framework of Mr Justice Blake in R (MM) v Secretary of State for the Home Department  EWHC 1900 (Admin). He had found, using the Court of Appeal’s own summary, that the minimum income rule was “in principle, incapable of being compatible with the article 8 rights of partners of UK citizens and refugees”.
Using the approach of Blake J, the tribunal found the sponsors’ incomes at the date of the appeal were above the required amount and referred to the specific difficulties caused by continued separation in each case. MS had step-children and the sponsor of TD was a reserve soldier, meaning the decisions to refuse were disproportionate.
The Upper Tribunal found that no error of law had been made in either case. After all, the First-tier Tribunal had followed the approach of a High Court judge. The Secretary of State applied for permission to appeal. The applications were stayed pending the determination of the appeal in MM. As is well known, the Supreme Court eventually found Blake J’s approach incorrect in February 2017: MM (Lebanon & Others  UKSC 10.
So, over four years after the original tribunal determinations, the Court of Appeal finally dealt with these appeals.
Despite valiant attempts by counsel for both respondents to argue that the determinations were consistent with the Supreme Court decisions, the Court of Appeal were not satisfied this was the case:
It seems to me that the cornerstone of both FTT decisions was indeed the judgment of Blake J. It did dictate their approach to the entire proportionality exercise and it would be very unsafe for us to “second guess” what the approach of the Tribunals would have been on the basis of the law as explained by the Supreme Court in SS – and one might add in the light of the further Supreme Court decision in R (Agyarko) v SSHD  UKSC 11, handed down on the same occasion, as the decision in MM/SS, by the same judges.
With no criticism of the judges below the Court of Appeal were compelled to allow the appeals. The original decisions being made based on law that was subsequently shown to be wrong, one has some sympathy for the First-Tier Tribunal judges trying to grapple with complex law that constantly changes:
In my judgment, the decisions of the Tribunals in these cases involved errors of law, of which those Tribunals were understandably unaware, and that those errors were clearly highly material to those decisions. I would, therefore, allow these appeals and would remit both cases to the UT for consideration afresh.
The most striking thing about this case is that it appears that none of the respondents were advised to give up the appeals and just lodge new applications, something endorsed by Lord Justice Lindborn in his contribution to the judgment:
It is difficult to see why that opportunity was not taken by the respondents here. If this had been done, a good deal of cost, delay and uncertainty might have been avoided, and these appeals might not have been necessary.
The initial decisions to refuse entry clearance were made in March 2013, so the appeals would have been lodged before the decision of Blake J in MM. The tribunal in each case indicated that at the date of the hearing the income requirement was met, or would be met shortly. Those decisions were made at the end of 2013 and beginning of 2014; the appeals have now been sent back to the Upper Tribunal and the respondents still do not have a satisfactory income.
Hindsight is always 20:20. Submitting a new application costs money and there is a delay while a fresh decision is made. But compared to the delay and costs of an appeal, having a little patience (and using the excellent guidance on meeting the income requirement from Gabriella on this blog) probably pays off.